Mathis v. Neotti

Filing 7

ORDER of Dismissal. Signed by Judge Edward M. Chen on 8/1/2011. (Attachments: # 1 Certificate of Service)(emcsec, COURT STAFF) (Filed on 8/1/2011)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 BENJAMIN SHERMAN MATHIS, 9 Petitioner, v. 11 For the Northern District of California United States District Court 10 No. C-11-3345 EMC (pr) GEORGE NEOTTI, Warden, 12 ORDER OF DISMISSAL Respondent. ___________________________________/ 13 14 15 Benjamin Sherman Mathis, a prisoner incarcerated at the R. J. Donovan Correctional Facility 16 in San Diego, California, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 17 2254. The petition is not his first federal habeas petition concerning his 1988 conviction from the 18 Santa Clara County Superior Court. His earlier habeas petition in Mathis v. Marshall, No. C 91- 19 20050 SW, was denied on the merits on July 29, 1992. 20 A second or successive petition may not be filed in this Court unless the Petitioner first 21 obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this Court 22 to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Petitioner Mathis has not obtained such an 23 order from the Ninth Circuit. This Court will not entertain a new petition from Petitioner Mathis 24 until he first obtains permission from the Court of Appeals for the Ninth Circuit to file such a 25 petition. This action is DISMISSED without prejudice to Petitioner Mathis filing a petition in this 26 Court after he obtains the necessary order from the Court of Appeals for the Ninth Circuit. 27 28 If Petitioner Mathis wants to attempt to obtain the necessary order from the Ninth Circuit, he should very clearly mark the first page of his document as a “MOTION FOR ORDER 1 AUTHORIZING DISTRICT COURT TO CONSIDER SECOND OR SUCCESSIVE PETITION 2 PURSUANT TO 28 U.S.C. § 2244(b)(3)” rather than labeling it as a habeas petition because the 3 Ninth Circuit Clerk’s office is apt to simply forward to this Court any document labeled as a habeas 4 petition. He also should mail the motion to the Ninth Circuit (at 95 Seventh Street, San Francisco, 5 CA 94103), rather than to this Court. In his motion to the Ninth Circuit, he should explain how he 6 meets the requirements of 28 U.S.C. § 2244(b). 7 Petitioner’s in forma pauperis application is DENIED. (Docket # 6.) 8 The Clerk shall close the file. 9 IT IS SO ORDERED. 11 For the Northern District of California United States District Court 10 12 Dated: August 1, 2011 13 _________________________ EDWARD M. CHEN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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